Paving way for redevelopment of Chandan Cinema in Juhu, the Bombay High Court has held that the Union government's June 19, 1976 notification under the Works of Defence Act, 1903, does not prohibit redevelopment of buildings up to 15 metres provided other dimensions of the redeveloped structures are maintained.
The notification had imposed restrictions on construction work in the vicinity of a military installation at Juhu.
A division bench of Justices Sunil Shukre and Firdosh Pooniwalla passed the order while hearing a petition by Sameer Baijanath Joshi, the owner of Chandan Cinema.
Fresh plan to be submitted soon
As per the DCR, some portion of the new structure will have to be retained as a cinema. However, things will be clear when they submit a fresh plan, said senior advocate Milind Sathe, appearing for Joshi.
The Chandan Cinema hall was built in 1973 on a 3,627-square-metre land. It had a height of 16.913 metres and a built up area of 18,982.06 sq.ft. it ceased operation in March 2017 following a demolition notice from the Brihanmumbai Municipal Corporation (BMC) since the structure was dilapidated.
Joshi proposed to build a structure with a basement and ground plus 11-storey building with a height of 50.70 metres above ground level, by consuming FSI of 12,722.22 sq. metres.
While the Airport Authority of India issued a no-objection certificate (NOC), the BMC insisted that Joshi get an NOC from the station commander, headquarters Maharashtra Gujarat and Goa Area, as the property was located in the vicinity of a Signal Transmitting Station (STS), a defence installation.
The 1976 notification carved out an exception and permitted redevelopment up to the height of 15.24 metres within 500 yards (457.20 metres) from the boundary wall of the said defence installation. It was allowed for structures that existed prior to the issuance of the notification.
Senior advocate Milind Sathe, appearing for Joshi, submitted that the station commander had granted NOC to several projects in the vicinity that were taller and in closer proximity to the station than the land of the petitioner.
Additional Solicitor General Devang Vyas opposed the plea contending that the notification restricts construction and excavation in the vicinity of the defence installation.
The bench, however, opined that the first proviso in the notification carves out an exception to the restrictions on the use and enjoyment of land.
“We hold that, if there is a permanent construction already completed at the commencement of the said Notification, then redevelopment of the said permanent construction is not barred by the said Notification,” the bench said. The court has clarified that the redeveloped structure will have to be of the permissible height of 15.24 metres or less and will have to be of the same dimensions as the already existing permanent construction.
ASG sought stay on the effect of the judgement. However, Joshi submitted that the stay would not be necessary as he would be required to submit a fresh plan for redevelopment of the property, and its sanction would take some time.
The HC refused to stay the judgment saying that it would not cause any prejudice to the Centre.